Hamblen v. Mohr ( 1943 )

On Motion for Rehearing.

As stated in our original opinion, we held that House was not guilty of malfeasance. Whatever defect there wa*s in the stairs, it was according to the plans of the architect. Now an architect follows an independent calling, as do doctors, lawyers or independent contractors. In Stephens County v. McCammon, Inc., 122 Tex. 148, 155, 52 S.W.2d 53, 55, in an answer to a certified question adopted by the Supreme Court, the status of an architect was likened to that of an attorney: “To illustrate, could it be seriously contended that, if a county desired the services of a skilled and competent attorney to represent the county in some important piece of litigation, involving a large sum of money, that the county should, before letting the contract, submit it to competitive bids, and then be required to hire the person making the lowest bid therefor? * * * To do and perform the work for which appellee was employed [architectural work] required technical skill and experience of a high degree.” In the case of White v. Green, Tex.Civ.App., 82 S.W. 329, cited in our original opinion, it is said: “We take it the work of the architect in preparing plans and specifications was that of an independent contractor.” In Burke v. Ireland, 166 N.Y. 305, 59 N.E. 914, 916, it is said: “But the architect was not the agent or servant of the owner. He was in the exercise of an independent calling, and held the same legal relations to the defendant that the builder did, and for the omissions of either in the execution of the plans personal negligence cannot be imputed to the defendant.” See Moore v. Lee, 109 Tex. 391, 211 S.W. 214, 215, 4 A.L.R. 185, where it is held that a physician, in virtue of his calling, must follow his own judgment, and the court said, “ * * * and he is truly an independent contractor.”

If the stairs as constructed were a nuisance per se, the fact that they were constructed according to plans prepared by the architect would not relieve House from liability for damages resulting therefrom to persons lawfully on the premises, and we so held upon original hearing. But we held that the same were not a nuisance per se.

If the principle contended for by appellee in this case should be sanctioned, it would (to use the language of Burke v. Ireland, supra) “be very difficult, if not impossible, for any owner of land in a great city to use it for building purposes without subjecting his entire estate to such enormous hazards as would virtually amount to a prohibition of such use.”

The motion is overruled.

Overruled.